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2008 DIGILAW 1162 (DEL)

Krishan Kumar v. State of Delhi

2008-12-15

SUNIL GAUR

body2008
SUNIL GAUR, J. 1. On 17th January 1995, in the noon time, i.e., at about 12.20 PM, Appellant “ Krishan Kumar alongwith his co-accused Devinder had robbed Ramesh Kumar of a bag containing Rs.1,85,000/- and while doing so, had assaulted Ramesh Kumar with deadly weapon, i.e., a country made pistol. In this appeal, Appellant “ Krishan Kumar assails the impugned judgment and order dated 24th May 1999 of the learned Additional Sessions Judge, Delhi, convicting him for the offences punishable under Section 307/34 of IPC and also under Section 392/394/397/34 of the IPC and sentencing the Appellant to undergo rigorous imprisonment for seven years for the offences of attempted murder and for the offence of voluntarily causing hurt with deadly weapon while committing robbery. 2. The prosecution version, as detailed in the impugned judgment is that on 17th January 1995, on receipt of DD No.11A, Assistant Sub Inspector Balbir Singh with a Head Constable and a Constable, reached Y point on the Alipur-Bawana Road and found that PCR van was standing there and Appellant “ Krishan alongwith his co- accused Devinder was apprehending by them and that injured Ramesh Kumar had been removed to the hospital and Assistant Sub Inspector Balbir Singh went to the hospital after leaving Head Constable Daya Nand at the spot and when ASI Balbir Singh came back to the spot, he had made an inquiry from the PCR staff and he came to know that the looted amount of Rs.1,85,000/- alongwith a dagger and a country made pistol with four cartridges had been recovered by the PCR officials from Appellant “ Krishan and his co-accused Devinder. When injured Ramesh Kumar was declared fit for statement, his statement was recorded wherein he had stated that he was going on foot towards his shop in Narela Mandi and on the way, he was robbed of a bag containing Rs.1,85,000/-by the Appellant and when Ramesh Kumar resisted, he was assaulted with a knife by co-accused “ Devinder, but the accused tried to flee away on a motor cycle and when Ramesh Kumar raised alarm, PCR officials chased the accused and the motor cycle on which accused were trying to flee away, fell down and Appellant “ Krishan and his co-accused “ Devinder were apprehended. However, the driver of the motor cycle fled away while leaving the motor cycle at the spot. However, the driver of the motor cycle fled away while leaving the motor cycle at the spot. After the investigation, charge sheet was filed against the Appellant and his co-accused for committing offences punishable under Section 307/34 of IPC and for offences punishable under Section 392/34 of IPC and under Section 394/397 of IPC. Appellant and his co-accused had claimed trial by pleading not guilty. 3. During the trial, fourteen witnesses had deposed in this case. Ramesh Kumar, (PW-4) is the complainant / first informant of this case; Shiv Kumar (PW-5) had removed the injured to the hospital; Constable Dilawar Singh (PW-7); Head Constable Rambir (PW-12); Constable Suresh Kumar (PW13) are from the Police Control Room (PCR), who had apprehended the Appellant and his co-accused. The medical evidence is of Dr. D.K. Jain, (PW-2) who has opined the nature of injuries of injured Ramesh Kumar as dangerous. Amar Singh, (PW-1) is the cashier of the bank, who has deposed about withdrawal of Rs.1,85,000/- by injured Ramesh Kumar. Assistant Sub Inspector Balbir Singh is the Investigating Officer of this case. .4. Appellant “ Krishan Kumar, in his statement under Section 313 Cr.P.C. recorded by the trial court, has denied the prosecution case and has not claimed the recovered cash and has stated that he alongwith co-accused Devinder Kumar were going on the recovered motor cycle, which they had taken from one Dharam Singh and the PCR van had hit the said motor cycle, which resulted in injuries to the Appellant and his co-accused Devinder and the Appellant has alleged his false implication in this case. Appellant had chosen not to lead any evidence in his defence before the trial court. After the trial, Appellant has been convicted and sentenced as noticed in the opening paragraph of this judgment. 5. In this appeal, both the sides have been heard and with their assistance the evidence on record has been scrutinised. 6. The foremost assault on the prosecution case by the defence is on the ground that the material witnesses, i.e., complainant (PW-4) and Suresh, (PW-5) have not supported the prosecution case and public witnesses have not been joined in the investigation of this case. It has been contended on behalf of the Appellant that the prosecution has concealed the fact of Appellant sustaining injuries and since co-accused Prakash has been acquitted, therefore, benefit of doubt also accrues to the Appellant. It has been contended on behalf of the Appellant that the prosecution has concealed the fact of Appellant sustaining injuries and since co-accused Prakash has been acquitted, therefore, benefit of doubt also accrues to the Appellant. The grievance of the Appellant is that he has been convicted and sentenced on the same day and thereby reasonable opportunity of being heard has been denied to the Appellant. Reliance has been placed upon judgment reported in 1991 SCC (Cri) 724 to contend that it is illegal to convict and impose the sentence on the same day. Lastly, it is urged on behalf of the Appellant that the medical evidence also does not support the prosecution case which is not proved from the evidence on record and therefore, the conviction and the sentence imposed upon the Appellant is rendered illegal and this appeal deserves to be allowed and Appellant be acquitted by giving benefit of doubt. Nothing else is urged on behalf of the Appellant. 7. Learned Additional Public Prosecutor for State supports the impugned judgment and submits that for whatever reason, complainant / first informant (PW-4) could not identify the Appellant as the culprit, but it will not make any difference because the fact of complainant raising alarm and of PCR van coming at the spot and chasing the Appellant and his co-accused and of apprehending them and of recoveries taking place stands firmly established from the evidence on record. It is pointed out that the material evidence of the PCR officials, i.e. PW-12 and PW-13 cannot be ignored and the version of the Appellant is far-fetched and merits rejection. 8. After having analysed the evidence on record, I find that the complainant/ first informant, (PW-4) has faltered regarding the identity of the Appellant but otherwise, his evidence regarding his raising alarm and of PCR van coming at the spot and chasing the culprits positively connects the Appellant with the commission of the offence in question as there is evidence of the PCR official Head Constable Rambir, (PW-12) which receives corroboration in material particulars from the evidence of Constable Dilawar Singh, (PW7). 9. From the aforesaid evidence, the factum of apprehension of the Appellant and his co-accused at the spot and of recovery of the looted amount, the weapon of offence and the motor cycle stands firmly established. 9. From the aforesaid evidence, the factum of apprehension of the Appellant and his co-accused at the spot and of recovery of the looted amount, the weapon of offence and the motor cycle stands firmly established. In fact, Appellant does not dispute his presence at the place of the incident and puts forth a vague version of PCR van hitting his motor cycle and of his false implication in this case. It has not been shown by the Appellant as to why Investigating Officer (PW-14) or the PCR officials, PW-12 and PW-13 would falsely implicate the Appellant in this case. Appellant cannot claim parity with co-accused Prakash, because he was not apprehended at the spot nor any recovery was effected from him. As regards non-joining of independent witnesses is concerned, the Investigating Officer has candidly stated in his evidence that experience has shown that nobody joins investigation in cases like the present one. This is a hard reality, which cannot be ignored. .10. From the aforesaid ocular version, the happening of this incident stands proved and after going through the evidence of Dr. D.K. Jain, (PW-2) and Dr. S.K. Johri, (PW-3), I find that there is no basis to allege that the medical evidence contradicts the ocular version. Although it is alleged by the Appellant that he was injured in this incident, but nothing has come on record to substantiate the aforesaid allegation of the Appellant. Acquittal of co-accused Prakash by the trial court would not be of any help to the Appellant for the reason that undisputedly co-accused Prakash was neither apprehended at the spot, nor anything was recovered from him. It is true that the Appellant was armed with a country made pistol and the injury sustained by Ramesh Kumar (PW-4) are with a knife and were caused by co-accused Devinder. However, Appellants Krishan Kumar and his co-accused Devinder were jointly concerned in committing the offence of robbery and to facilitate the commission of the said offence, they had acted in concert as co-accused Devinder had stabbed the complainant, only when he had resisted the snatching of the bag from the complainant by the Appellant. .Therefore, the commission of offence under Section 394 of the IPC by the Appellant and his co-accused Devinder stands amply proved from the evidence on record. .Therefore, the commission of offence under Section 394 of the IPC by the Appellant and his co-accused Devinder stands amply proved from the evidence on record. In case of Dashrath Darange v. State of Maharashtra, (1997) 2 Crimes 47 (Bom), it has been observed that not only the person who actually causes hurt but an associate of his/her would equally be liable for the mischief contemplated by this section, i.e., Section 394 of IPC. Thus, the conviction and the sentence imposed upon the Appellant for commission of the offence under Section 394 of IPC is fully justified and it calls for no interference by this court. No case of reduction of the sentence of rigorous imprisonment for seven years imposed upon the Appellant for the offence under Section 394 of IPC is made out in the given facts of this case. 11. The legality of imposing sentence on the day an accused is convicted is questioned by the Appellant by relying upon case of Sevaka Perumal and Another v. State of Tamil Nadu, (1991) SCC (Cri) 724, wherein it has been held by the Apex Court as under:- “In the present case though the Sessions Judge needed to adjourn the case under Section 235(2) to next date but in the High Court the counsel was directed to show any additional grounds on the question of sentence. The High Court observed that the counsel was unable to give any additional ground. Therefore, there is no infirmity in imposition of the sentence.” 12. During the course of hearing of this appeal, an opportunity was granted to the learned senior counsel appearing on behalf of the Appellant to give any additional ground on the point of sentence and the same would be considered by this court, but no such additional ground has been given and therefore, the Appellant cannot be heard to say that he has suffered any prejudice by sentencing him on the day he was found guilty by the trial court. .13. As far as the conviction of the Appellant for the offence under Section 307/34 of IPC is concerned, the same is not justified for the reason that the intention of the Appellant was not to attempt to murder the complainant but was to facilitate commission of robbery for which the Appellant already stand convicted and sentenced and the same has been upheld by this court. Therefore, the conviction and the sentence imposed upon the Appellant for the offence under Section 307/34 of IPC is hereby set aside. However, conviction and sentence awarded by trial court for offence under Section 394 of IPC is maintained. The sentence imposed upon the Appellant was suspended during the pendency of this appeal and he is on bail. His bail bond and surety bonds are discharged and he is directed to be taken into custody to serve out the remainder of the sentence of rigorous imprisonment for seven years. 14. With aforesaid directions, this appeal stands disposed of.